Gear up for the Luxembourgish Law on Moral Harassment at work

While Myriam already had some notions about it, now that it was official she wanted to deep dive right in to make sure she was fully knowledgeable and her employer ready and compliant. 

In this blog, we invite you to join Myriam in her steep learning curve and research efforts on the Luxembourgish Law on Moral Harassment at work. Together, you will grasp what it entails, its background, and what it means for employers and employees.

Introducing the Moral Harassment Law and its genesis

As Myriam was already aware, before March 2023, moral harassment wasn’t formally regulated in the Luxembourgish law. However, the Grand-Ducal regulation of 15 December  2009 considered the ‘Convention on Harassment and Violence at Work’ from the same year, of general application. 

This convention was signed between the trade unions OGB-L (Independent Luxembourg Trade Union Confederation) and the LCGB (Luxembourg Confederation of Christian Trade Unions), on the one hand, and the Union des Entreprises Luxembourgeoises (UEL), on the other hand. Additionally, Luxembourg courts relied on civil legal provisions.

(Myriam knew all this because, back in March, she came across PwC Legal’s newsletter, which was really helpful.)

Now let’s get a bit legal. On 29 March 2023, the Luxembourg Parliament passed the new law, which amended the Labour Code to introduce provisions addressing moral harassment in employment relationships. 

This amendment, published on 5 April 2023 and entered into force on 9 April 2023, introduces Chapter VI, titled “Moral Harassment,” within the Labour Code’s Title IV of Book II (if you wish to go deeper, you can check the Luxembourg Labour Code, from page 142 to 144).

The scope 

After some research and reading, Myriam came across some interesting articles, which outline the law’s two scopes: a personal and a material one.

Personal scope, meaning who is obligated and protected under the law:

• all employers, customers or suppliers of an entity (Art. L.246-3);
• “employees”, meaning all employees as defined in the Labour Code’s article L.121-1 as well as trainees, apprentices, pupils, and students;
• in addition, employees who testified on facts relating to moral harassment are also protected against reprisals (L.246-4).

Material scope: moral harassment is any conduct that, by its repetition or systematisation, undermines the dignity, or psychological or physical integrity of a person (Art. L.246-2).

Myriam noted that the definition of moral harassment includes acts or behaviours that can be committed by an employer, employee, customer or supplier within the workplace, but also during business trips, professional training, or any communication related to work, regardless of the means used. It also extends to situations outside normal working hours. This was important to explain to her colleagues.

What the law means for employers

Myriam leaned back in her chair. The definition of moral harassment was clear to her, but how could she and her employer actually protect employees? Were there any specific obligations?

Soon enough, she discovered article L.246-3, which covers such obligations. Hence, employers need to:

• refrain from any moral harassment during the work relationship;
• ensure that any act of moral harassment against employees (of which the employer is aware) ceases immediately;
• determine the measures to be taken to protect employees against moral harassment at work, after informing and consulting staff representatives (or, failing that, the entire staff directly). Additionally, employers should adapt these measures to the nature of their activities and the company’s size, but should minimally cover:
  • the definition of the options available to victims of bullying (for instance, reporting, help, support, care and return to work);
  • conducting prompt and impartial investigations into acts of moral harassment;
  • raising awareness among employees and managers on the definition of moral harassment, management of incidents and sanctions against perpetrators;
  • informing staff representatives (or, failing that, staff directly) of the obligations on employers; and informing and training employees.
• If an employer discovers incidents of moral harassment, they should also conduct an internal assessment to determine the effectiveness of existing preventive measures and consider revising procedures and/or implementing additional preventive measures. This evaluation should involve consulting the staff delegation or, if not available, consulting all employees.

Myriam took a breath. It was time to stretch her legs and get another cup of coffee before continuing her research.

How to protect employees against moral harassment

The next step for Myriam was to understand and get familiar with article L.246-4, which specifies the protection mechanism for employees introduced by the law. Such mechanisms include:

• protection of victimised employees: Employees can’t be the subject of reprisals because of their protests or refusals that oppose behaviour of moral harassment on the part of the employer or any other hierarchical superior, work colleague or external person in relation with the employer. This protection, therefore, applies to employees who are victims of moral harassment or who have testified against it. According to the new law, any retaliatory actions taken against them will be considered null and void.
• legal action upon dismissal: In case of dismissal, employees have the option to bring a legal action before the Labour Court’s president. They can seek the dismissal’s annulment within 15 days of receiving the termination notice. The employee may request either their reinstatement or compensation for damages.
• termination of employment contract: Article L.246-6 states that an employee who has been the victim of moral harassment may refuse to continue to perform the employment contract and terminate it without notice on serious grounds, with damages payable by the employer whose fault caused the immediate termination, in accordance with article L. 124-10.

Myriam was pleased with these protection measures, but quickly sent a message to a colleague in the Legal department to discuss them. She wanted to make sure she understood the legal articles correctly. 

This was only a first step as there were potentially other departments that needed to be involved to set up the protection mechanisms—she would think about that next. 

A note on the staff representatives’ role

Another aspect Myriam was sure about was the division of responsibilities. As the compliance officer, she knew she was the one ultimately responsible for making sure her employer is compliant with the law.

That being said, different tasks in a company’s planning can be delegated to different teams. For example, the Human Resources department will also have a main role to play on harassment matters.

Staff representatives, too, have a prominent role in the framework put forward by the law. Article L.246-5 states that they:

• are responsible for ensuring the protection of employees against moral harassment in the course of their work relations and, in this respect, may propose to the employer any preventive action they deem necessary;
• assist and advise the employee victim of moral harassment and may assist them during investigation.

Myriam quickly checked her calendar. The next regular meeting with the staff representatives was in two weeks, so she made a note to add the new law to the agenda. 

When things take a turn for the worse

In her many years of experience as a compliance officer, Myriam followed the motto “hope for the best and plan for the worst”. She didn’t expect her company to turn a blind eye to an act of harassment, but she still wanted to look into what to do under such circumstances. 

According to article L.246-3 (5), if the moral harassment at work persists after implementing measures or if the employer refrains from taking the appropriate steps, the employee or staff representative (with the agreement of the employee concerned), can refer the case to the Inspectorate of Labour and Mines (ITM).

The ITM will hear the employee in question as well as the presumed author of the act of moral harassment, and possibly other employees and the employer or his representative. It will then provide a report containing recommendations and proposals for measures to put an end to the act. The report will be sent no later than 45 days after the ITM receives the case.

Furthermore, when the act is confirmed, the Inspectorate of Labour and Mines’ Director will urge the employer to take the necessary measures to immediately put an end to such an act within a time limit set according to the report’s elements.

In the event of non-compliance, duly notified within the time limit, the Director is entitled to impose an administrative fine on the employer in accordance with article L. 614-13. 

The heavy price of non-compliance 

Companies may have a number of reasons for not reacting or complying: the lack of staff and budget, not knowing where to start, or thinking “this will never happen here”. Myriam often argued in Board meetings that any compliance breaches, if they become public, never do a company any good to their reputation and attractiveness. The same applies here. 

Fines ranging from EUR251 to EUR2,500 can be imposed for non-compliance with articles L.246-3 and L.246-4. In the event of a repeat offence within two years, these penalties may increase to twice the maximum.

But, for Myriam, preventing moral harassment is indeed a moral imperative. It just shouldn’t happen. She herself wouldn’t want to work for a company that allowed it or would stay inactive. 

At last, Myriam felt she had covered all the bases on the law and taken the first necessary steps to start drafting an Anti-Harassment Policy for her bank.  

The connection with the Luxembourgish Whistleblower Protection law

By the end of May, after meeting with the Legal department and the staff representatives, and with a new Anti-Harassment Policy well under way, Myriam was again reading the news, coffee in her hands. 

This time she stumbled upon the new Whistleblower Protection Law that allows reporting anything unlawful. She immediately thought of the Labour Code articles she had read a few weeks ago: “So, moral harassment is also in scope of the Luxembourgish Whistleblower Protection Law!” she concluded. 

To implement both laws, she needed to be adequately prepared to address reports regarding harassment through the bank’s reporting channels.

After another morning of thorough reading, she understood that the bank also needed to comply with the timelines set forth by the Whistleblower Protection Law in addressing harassment reports, but should consider that the Moral Harassment Law imposes the obligation to investigate all such reports.

An additional challenge is that Myriam, together with colleagues from other departments, would need to put in place procedures that allow the bank to comply with the Whistleblower Protection Law’s confidentiality requirements, but also ensure compatibility with the victims’ rights (and the “accused”), as delineated in the Moral Harassment Law. For instance, having staff representatives support and advice, and a potential investigation by the ITM.

She also discovered that both laws offer protection against reprisals and foresee sanctions against retaliation. Similarly, training, communications and procedures are required under both laws. In other words, compliance with both legal frameworks may easily fall under the same “package”. Lastly, the staff representatives also need to approve a Whistleblowing Policy.

Myriam sighed. She was relieved that the Anti-Harassment Policy wasn’t done yet because now she would have to link it with the updated Whistleblowing Policy. She opened her mailbox and started to type another message to the staff delegation representative and Legal team to align on further steps. She was wondering who else she needed to talk to. This wouldn’t be easy. 

Conclusion

Implementing the new Moral Harassment Law in conjunction with the Whistleblower Protection Law requires the involvement of many stakeholders to discuss governance, processes, and IT support for internal reporting channels and communications. 

Preparing new policies might be the first step, however, in practical terms, Myriam now understood that there is more that needs to be done. The entire process should be thought through and anticipated to react quickly and protect victims. 

While discussing with a colleague from internal audit, she learnt she could ask a consultancy firm for help. Through a recommendation, she found out that PwC Luxembourg’s Anti-Financial Crime and Forensics team would be able to support her in a number of ways:

• reviewing and assessing the current compliance policies and procedures/practices with the new statutory obligations. This includes the “cultural” element, tone at the top (through interviews/discussions), among others;
• ensuring the existing reporting channels are compliant with the new Moral Harassment Law, that is, adequately identify harassment allegations and make sure they are followed through to be investigated (besides the whistleblowing-related umbrella of services).
• performing the investigation of the moral harassment allegations (to avoid a recurrence to the ITM).
• providing training about moral harassment in accordance with article L.246-3.

Do you relate to Myriam’s story? Visit the Anti-Financial Crime and Forensics page and get in touch with the team to get the support you need.

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